Document 96

IN THE UNITED STATES DISTRICT COURT FORTHE SOUTHERN DISTRICT OF FLORIDA

CASE NO.: 1 1-20120-C1V-SE1TZ/S1M ONT0N

1

FILED by D.C.

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STEVEN M. LARIMORECLERK .U .S DISI'. CT.S. D. of FLA. - MIAMI

TM IAN BUJDUVEANU,

l'lltirltiF,

VS.

DlsM As CHARITIE ,s m c ,. ANA GISPER LDEREK THOM AS and LASHAN DA Aoo s

Defendants.

/

Plaintifr: Obiection: to the Report and Recommendation Re; Defendants' M otion to

Dismiss

PlaintiFTraian Bujduveanu provides this response containing a list of objections to the

Honorable Judge Andrea M . Simonton's report and recommendations re: Defendants' Motion to

Dismiss, and asserts the following'.

Standard for Evaluatinu a m otion to Dism iss

I agree that Fed.R.CiV.P. 8(a)(2) requires that a pleading ''shall contain ... a short

and plain statement of the claim showing that the pleader is entitled to relief.'' This is

because ''ltlhe purpose of a modern complaint is 'to give opposing parties fair notice of

the basis of the claim against them so that they may respond to the complaint, and to

apprise the court of sum cient allegations to allow it to conclude, if the allegations are

proved, that the claimant has a legal right to relief' '' M onument Builders v. American

Cemetery Ass'n, 891 F.2d 1473, 1480 (10th Cir.1989), cert. denied, 1 10 S.Ct. 2168

1

Case 1:11-cv-20120-PAS Document 96 Entered on FLSD Docket 02/23/2012 of 20

(1990) (quoting in part Perington W holesale, lnc. v. Btlrger King Cop., 631 F.2d 1369,

1371 (10th Cir.1979)); see also Conley v. Gibson, 355 U.S. 41, 47 (1957). Furthermore,

the judge goes on to make the case that, ttrecitals of the elements of a cause of action,

supported by mere conclusory statements, do not sum ce.'' This sGtement in addition to

others propounded by the Judge regarding the lack of material facts in the Plaintiffs

initial pleadings leads the Plaintiff to question whether Judge Simonton actually read the

entire record and all the documents submitted, rather than the just the Plaintiff's initial

filings. l acknowledge that my initial filings were not the most articulate, and in

compliance with every single rule of civil procedure, as this has been a learning process

for me. However, Defendant Anna Gispert's adm ission of not having provided BP-9

forms to M ovant, provides the Movant no means of documenting the abuses of process,

abuses of Constitutional rights and civil liberties on the part of the Defendants, and even

goes to the extent of providing the M ovant very little material documentation of his

experiences at the halfway house.However, it was their intention a1l along to deny the

Movant an opportunity to ever have a legitimate opportunity to defend himself both in

their nonexistent in-house judiciary proceedings, when he faced the Federal Bureau of

Prisons prior to being sent back to prison, and currently in his civil action against the

Defendants. I understand that the judicial process is hindered by the lack of documented

facts that prove the %sertions made by the plaintiffs, yet l ask that you not fall into the

1ap that the Defendants have set when they denied my ability to document my

grievances. Even if I was given the opportunity to m ake sure that m y initial pleadings

were in com pliance with the Federal Rules of Civil procedtlres rules 8a, the fact of the

matter, is that the Defendant's conspiracy to cover up their wrong doings by fabricating

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the record and denying me my constimtional right to address and document my

grievances, leaves me with very little means of providing material docllmentation of my

experiences at Dism ms House Charities. M y accusations should not be seen as itwildly

implausible'' because my initial complaint and pleadings were my flrst opportunity to

present my grievances, without a means of m aking reference to supporting

docllmenGtion, i.e. BP-9 forms, testimony by fellow inmates, and in addition the record

or any proceedings which took place. Essentially, I msk that the court does not view my

lack of fact as being Eçwildly implausible allegations in a pro se complaint that should be

considered untrue,'' however it should be seen as the Defendant's attempt of clouding the

court's judgment by preventing the Plaintiffthe ability to provide sumcient proof of his

claim s.

l1. Legal Analysis

a. The Fourth Amendment

The Defendants attempt to make the case that as a condition of the Plaintic s parole

that he consented to Rsearches of his person and vehicle''. However, the Plaintiff made it

clear to individuals at Dismas House that he was simply operating a fnmily vehicle, to

fulfill his required reporting requirem ents. Although the individuals in the halfway house

had, right to search his person upon entering the building, the Supreme Court has found

that, his family members have a protected interest against their property being subject to

searched and seizure. ''When the prosecution seeks to jlzstify a warrantless search by

proof of voluntaz.y consent, it is not limited to proof that consent was given by the

defendant, but may show that the permission to search was obtained from a third party

3


who possessed common authority over or other suftkient relationship to the premises or

effects sought to be inspected.' United States v. Matlock, 415 U. S. 164, 171 (1974). 1

have acknowledged that, while a probationer's right of privacy may be justifiably

diminished during the period of probation (see lnman v. State, 124 Ga. App. 190 (2) (183

SE2d 413) (1971:, ''probationary status does not convert a pxobationer's family, relatives

and friends into 'second class' citizens. . . . These people are not stripped of their right of

privacy because they may be living with a probationer or (slhe may be living with them.''

State v. Fogarty, supra at 151. The Suprem e Court of M ontnnaa the only court in the

country to address the ram itk ations of the warrantless search condition of probation on

third parties living with a probationer, concluded that a search warrant based on probable

cause must be obtained before a probationer's residence or property may be searched ''so

that the legal interests of innocent third persons can be adequately protected. . .

Moreover, the judge makes the case that because Adams was not directly involved in the

search that she should not be held liable. The named defendants although may not have

been the ones that conducted the search and seizure of the vehicle and property, were in a

position to retum the property when finding out that they were not searching the

plaintiff s personal property, and thus didn't get the necessary perm ission to search and

seize his fnmily's property. ln this case respondeat superior takes effect in that Adams,

Thomas, and Gispert are directly responsible for the actions of their employees, and they

are should be even more liable for choosing to cover up their actions rather than

addressing these actions and acting within the confmes of the law.

b. First Amendment Retaliation Claim

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Judge Simonton attempts to rgue that the plaintiff fails to state a claim for retaliation

tmder the First Amendment. This seems similar to the Defendant's claim when they

noted that, uhe (the movant) fails to provide any proper evidence demonskating that he

%ked to attend religious services outside a five mile radius and that his request was

denied''. On 7/29/2010 the M ovant made a request to Lmshonda Adnms, in which he

requested, and was denied the ability to attend a Romanian Orthodox Chtlrch located on

SGte Road 7, in Pem broke Pines, to which M s. Adnm s replied that you are only allowed

to travel witltin five miles of the facility for religious services. ln fact, the Movant made,

2 other documented requests on 8/4/2010 and on 10/6/2010, al1 of which were denied by

M s. Adams. Al1 parties including the defendants are aware of the special exception to the

(5) mile rule which states that, Etan exception to the rule will only be made when yolzr

suted denomination of worship cannot be located witlzin five miles of the program''.

Cruel and Unusual Punishment tmder Eicht Amendment

The M agistrate errors in her assllmption that the Plaintitrs claim for cruel and unusual

punishment centers merely around the cov scation of his property, but goes m uch deeper

and in fact, would be seen as egregious in many third world countries whh less respect

for human rights and civil liberties. ln analyzing claims of Eighth Amendment

violations, the courts m ust look at discrete areas of basic human needs. As we have

recently held, '' '(A)n instimtion's obligation under the eighth amendment is at an end if it

furnishes sentenced prisoners with adequate food, clothing, shelter, snniGtion, medical

care, and personal safety.''' Wright v. Rushen, 642 F.2d 1 129, 1 132-33 (9th Cir.

lg8lltcitation omitted). 682 F.2d at 1246-47. When analyzing whether Dismms charities

violated their obligation to respect the Plaintiffs eight amendment rights they went

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beyond a confiscation of llis property, simply taunting, and submission to menial

activities.

Looking back at the som e of om previotts discussions of Negligence in previous

pleadings, it is clear that althoug,h the defendants attempt to paint themselves as caring

and compassionate, going as far to point out that they made the recommendation that the

M ovant not participate in any manual activities. However, Ana Gispert, is on record as

stating that she believes that Rdusting qualifies'', thus giving him a directive to pedbrm

manual labor. After days and days of harassment in M s. Gispert's absence, the M ovant

sent an email an email within this Dismas Chmities intemal system indicating, 1û. .. pain

and discomfort in my liver''. Yet again, in a letter dated 10/19/2010, the plaintiff- ote,

çûthis letter is to advise you that today, 10/19/2010, 10:50 A.M ., l was called to the front

desk and told that 1 should vacuum the room for him, in an attempt to intimidate me.'' He

goes on to state that, ûû. .. as a result of al1 actions against me, for the last week, by M r.

Thomas and his staff, my liver has swollen and l do experience pain''. lf forcing an

individual that Defendants had previously had made the case to the Btlreau of Prisons to

not participate in any manual labor, to dust and vacuum then is not a clear case of cruel

and unusual plnishment, and thus a violation of the duty to provide adequate medical

care and personal safety, there is no justice in the world. Even with the Defendants

admitting to the fact that they were aware of his medical conditions, the Defendants have

refused to address the Plaintifrs claim that he wms not provided meals that were diabetic

friendly, and was given disciplinary action for an incident where is wife was delivering

food as a result of him not receiving adequate nutritional from the halfway house,

something that they are required by law to do.This violates Department of Correction

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Policies in which, it is mandated that each institution's food service propam offers

nutritionally balanced, appetizing meals. Special Food and M eals, 28 C.F.R . j 547.20 and

Provam Statement 4700.05, Food Services M anual, provide that medical diets be

available to inmates who require such diets. The M ovant's reserch hms found however

that, a prison oftkial violates a prisoner's Eighth Amendment rights, and is deemed

negligent if he/she is deliberately indifferent to the prisoner's serious medical needs. See

Estelle v. Gnmb1e,429 U.S. 97, 103-04, 97 S.Ct. 285, 50 L.Ed.2d 251 (1976).

d. Fifth Amendment Due Process Claim

Let's take a moment to address the M agiskates erroneous claim that Plaintiff fails to

set forth any facts demonstrating a false imprisonment or arrest by any specific

Defendant. As stated in M ovant's previous brief, it was the direct and indired actions of

the Defendant which lead to the confmement of the M ovant. Causation is, of comse, a

required element of a false imprisonment. See Oviatt v. Pearce, 954 F.2d 1470, 1474 (9th

Cir. 1992). A probation/ parole oftker need not actually use force to detain a

probation/parolee illegally. Although false im prisonment usually follows false arrest,

false imprisonment may take place even after a valid arrest.

In all of the Reponses and bdefs from the Defendants, they claim that that the M ovant

was charged introducing contraband to the facility, when in fact he was charged with a

violation 108, which specifically, Etpossession, M anufacture, or inkoduction of a

hnzzrdous tool (Tools most likely to be used in an escape or escape attempt or to serve as

a weapon capable of doing of doing serious bodily harm to others; or those hazardous to

institutional security or personal safety'', to include that of a cell phone. First an.d


forem ost, a cell phone unless used a detonation device cannot be seen as threat to

personal or instimtional safety. At best this alleged violation should have been charged

as a Code 305, Etpossession of anything not authorized for retention or receipt by the

inmate, not issued to through regular channels. Now, why would the Defendants'

increase the charges against the plaintiff such that they are more severe? The answer to

that question is simple. A violation 108 would have required the Plaintitrs removal from

the facility back to federal prison, whereas if he wœs charged appropriately, in-house

sanctions would have suftked. Going back to the case 1aw and arguments asserted in om

previous response, a police oftk er may be held to have Kinitiated'' a criminal moceeding

if he knowingly provided false information to the prosecutor or otherwise interfered with

the prosecutor's informed discretion. See, Reed, 77 F.3d at 1054; Torres, 966 F.supp. at

1365. In such cases, tçan intelligent exercise of the ... (prosecutor's) discretion becomes

impossible,'' and a prosecution based on the false information is deemed ttprocmed by the

person giving the false information.'' However, a private citizen m ay be held liable for

false arrest under j 1983 if he or she caused the plaintiffto be arrested by virtue of false

statements he or she made to the police. Doby v. Decrescenzo, 1996 U .S. Dist. LEXIS

13175, *40 (E.D. Pa. Sept. 9, 1996). Thus, otlr claim is clear, the Defendants did not

place the Plaintiff in handcuffs, they did however provided false and misleading

sutements to the Bmeau of Prisons such that their ability to levy justice wms impaired

and the Plaintil was denied the privilege of the freedoms that come w1111 having

completed a prison sentence and being afforded community monitoring in a halfway

house facility.

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W hich leads us to address the Defendants' second contention, the Plaintiff wœs under

the misguided impression that he wms a tûfree man'' during his time at Dismas. At no

point did the Movant see himself as a free man during llis time at Dism%, and the

M ovant operating an automobile while tmder the mssumption that he was authorized to do

so does not justify the Defendants' claim. Let's not mix apples with oranges, contt.ary to

the Defendants' statements, the M ovant was not a federal prisoner confned to a federal

facility, and thus could not be rearrested, he was a federal inmate afforded the privilege

of dwelling in a halfway house and home confmement due to his health. As we made

dear in om previous brief, the courts on the other hand have seen being on parole or in

halfway house as being more thanjust a privilege. The Court has found proteded liberty

interests after an inmate is released from instimtional confinement. ln M orrissey v.

Brewer, 408 U.S. 471 (1972), the Court recognized a parolee's liberty interest in

remaining conditionally free on parole: ''(H1e can be gainfully employed and is free to be

with family and friends and to form the other enduring attachments of normal life. . . .

(Hlis condition is very different from that of confinement in a prison.'' ld. at 482. Relying

on Morrissey, the Court in Yotmg v. Harper, 520 U.S. 143 (1997), held that an inmate

enrolled in Oklahoma's pre-parole propnm also had a protected liberty interest entitling

him to due process before he could be removed from the program . There the pre-parolee

''was released from prison before the expimtion of his sentence. He kept his own

residence; he sought, obtained, and maintained ajob; and he lived a life generally free of

the incidents of imprisonment.'' By virtue of the Defendants' w11111 disregard for

M ovants right to this privilege, the plaintiff suffered dnmages and opportunity cost, for

9


not being able to live not as free man, but as a man who has earned the privilege of being

free of correctional institutional confinem ent.

e. Double Jeooardv

Yet again, the Magistrate makes the claim that the PlaintiTs double jeopardy

claims should be dismissed with prejudice as the Plaintiff is lmable to state a cause of

action tmder this clause. Herjustification for this assertion is United States v. Mayes,

th cir 1998) in which the court examined a case in which prisoners158 F 3d 1215 (11 . ,

cause over $3 million in property dnmage during a prison riot and were subsequently

punished as part of the system as well as in criminal proceedings for the same offense.

However, The sanctions against the appellants in tltis case were imposed pursuant to 28

C.F.R. jj 541.10-541.20 (1993). These regulations authorize ''institution authorities to

impose discipline on those inmates whose behavior is not in compliance with Bureau of

Prisons rules.'' 28 C.F.R. j 541.10(a). Section 541.13 delineates the various types of

prohibited acts and groups them into categories based upon the seriousness of the

infraction. See 28 C.F.R. j 541.13, Table 3. The ''Disciplinary Severity Scale'' then

describes the types of authorized Ranctions that oftk ials have discretion to impose bmsed

upon the category into which the prohibited act falls. See 28 C.F.R. j 541.13, Tables 3-6.

The regulations also set forth detailed procedlzral guidelines that institutional staff must

follow when bringing disciplinary action against an inmate. See 28 C.F.R. jj 541.14-

541.19. lt is obvious that the judges makes the error using a case that involves direct

criminal conduct to justify her argument, in a case that does not involve dired criminal

conduct. Thus it is clear that she should find a case in which an inmate was punished for

committing a violation of bureau of prisons terms and rules and then is subsequently

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punished in a criminal proceeding, which is impossible, as such a case does not exist as

the idea of someone being sent back to prison for such a minor violation is ludicrous.

f. False Arrest and lmprisonment.

As sGted in Movant's previous brief, it was the direct and indirect actions of the

Defendant which lead to the confinement of the M ovant. Causation is, of course, a

required elem ent of a false imprisonm ent. See Oviatt v. Pearce, 954 F.2d 1470, 1474 (9th

Cir. 1992). A probation/ parole officer need not acmally use force to detain a

probation/parolee illegally. Although false imprisonment usually follows false arrest,

false imprisonment may take place even after a valid arrest. ln all of tlze Reponses and

briefs from the Defendants, they claim that that the M ovant wms charged introducing

contraband to the facility, when in fact he was charged with a violation 108, which

specitkally, itpossession, Manufacture, or introduction of a hnzmrdous tool (Tools most

likely to be used in an escape or escape attempt or to serve as a weapon capable of doing

of doing serious bodily hnrm to others; or those hazardous to institutional sectlrity or

personal safety'', to include that of a cell phone. First and foremost, a cell phone unless

used a detonation device cannot be seen ms threat to personal or institutional safety. At

best this alleged violation should have been charged as a Code 305, Kpossession of

anything not authorized for retention or receipt by the inmate, not issued to through

regular channels. Now, why would the Defendants' incremse the charges against the

plaintiffsuch that they are more severe? The answer to that question is simple. A

violation 108 would have required the Plaintiff s removal from the facility back to federal

prison, whereas if he was chrged approm iately, in-house sanctions would have suftk ed.

11


Going back to the cmse 1aw and argum ents asserted in our previous response, a police

oftker may be held to have ltinitiated'' a cdminal proceeding if he knowingly provided

false information to the prosecutor or otherwise interfered with the prosecutor's informed

discretion. See, Reed, 77 F.3d at 1054; Torres, 966 F.supp. at 1365. In such cases, tlan

intelligent exercise of the ... (prosecutor'sl discretion becomes impossible,'' and a

prosecution based on the false information is deemed Etprocured by the person giving the

false information.'' However, a private citizen may be held liable for false arrest under j

1983 if he or she caused the plaintiF to be arrested by virtue of false statements he or she

made to the police. Doby v. Decrescenzo, 1996 U.S. Dist. LEXIS 13175, *40 (E.D. Pa.

Sept. 9, 1996). Thus, our claim is clear, the Defendants did not place the Plaintiff in

handculs, they did however provided false and misleading statements to the Btlreau of

Prisons such that their ability to levyjustice was impaired and the Plaintiff was denied

the privilege of the freedoms that come with having completed a prison sentence and

being afforded commlmity monitoring in a halfway house facility.

The judge makes another fundnmental error when she likens, Etthe Plaintiffs residence at

Dismas Charities is considered the functional equivalent of incarceration, he cnnnot

establish a liberty interest in remaining there (p. 47)95. As we argued in olzr previous

briefs, the courts on the other hand have seen being on parole or in halfway house as

being more thanjust a privilege. The Court hms found protected liberty interests after an

inmate is relemsed from instimtional consnement. In M onissey v. Brewer, 408 U .S. 471

(1972), the Court recognized a parolee's liberty interest in remaining conditionally free on

parole: ''(H1e can be gainfully employed and is free to be with fnmily and friends and to

form the other enduring attachments of normal life. . . . (Hlis condition is very different

12


from that of confinement in a prison.'' Id. at 482. Relying on M onissey, the Court in

Yotmg v. Harper, 520 U.S. 143 (1997), held that an inmate emolled in Oklahoma's pre-

parole progrnm also had a protected liberty interest entitling him to due process before he

could be removed from the propam. There the pre-parolee ''was released from prison

before the expiration of his sentence. He kept his own residence', he sought, obtained, and

maintained ajob; and he lived a life generally free of the incidents of imprisonment.'' By

virtue of the Defendants' willful disregard for M ovants right to tltis privilege, the plaintiff

suffered dnmages and opportunity cost, for not being able to live not as free man, but as a

man who has enrned the privilege of being free of correctional institutional confinement.

There is nothing legal or permissible about trumping up charges such that they cause an

outcome that suited the Defendants' inherent disgust and dislike for M ovant, in that there

are docllmented cmses of State Attorneys that have been convicted of criminal charges for

padding files with false charges and arrests.

g. Assault and Battery.

The M agisGte again argues that there is no way that the plaintiff can make a

claim for assault and battery as there is no statements of fact against a particular

defendant. l agree for the simple fact that, tlno such record of the assaults and battery that

took place as the Defendant's refused to provide the M ovant with and means of

doctlmenting said actions.'' Anna Gispert's admission of not having provided BP-9

forms to M ovant, provides the Movant no means of docllmenting the abuses of process,

abuses of Constitutional rights and civil liberties on the part of the Defendants, and even

goes to the extent of providing the M ovant very little material documentation of his

13


experiences at the halfway house, which was the intention of the Defendants' a11 along,

essentially concealing and covering up their misconduct. As we argued previously the

courts have made it clear that, in Allen v. Mc Monis, No. 4:06-cv-810 SNL, 2007 W L

172564, at *2 (E.D. Mo. Jan. 19, 2007) çtholding allegation that prisoner could not get

grievance policy or forms barred sllmmary judgment for defendants'', and because of this

Court has an obligation to deny the Defendant's request for Dismissal, and the M ovant

should be awarded sllmmaryjudgment.

h. M alicious Prosecution

The fact of the matter is that CW II federal claims for malicious prosecution are

borrowed from the common law tort ... (whichl imposes liability on a private person who

institutes criminal proceedings against an innocent person without probable cause for an

improper purpose. The federal claim under (42 U.S.C.) section 1983 for malicious

prosecution differs f'rom the state civil suit in that it reqtlires that state officials acting

'under color of law' instimte the criminal proceedings against the plaintiff and thereby

deprive ltim of rights secured under the Constitution.'' Torres v. Superintendent of Police,

893 F.2d 404, 409 (1st Cir.1990).

The Plaintiffwms not guilty of introducing hazardous m aterials into a correctional

facility, as his cell phone was simply contraband, and not something that cotlld be used to

escape, or hnrm the welfare of those in the facility.Moreover, this cellphone was

contraband for individuals sGying at Dismas facilities, and were not contraband for an

individual on home confinement. Furthermore, the cell phone in his vehicle, might in the

case of drug possession constitute material possession, however given the fact that he was

14


not attempting to introduce it into the facility on his person, and was in fact in the glove

compartment of his vehicle tmbeknownst to the Movant does not constitute actual or

material possession. The plaintiffwœs under the assumption that he was able to drive,

and his ignorance of the process does not take away f'rom his guilt, but him operating a

motor vehicle is not the reason that he was tlken back to prison, as that would have been

sometlzing addressed in-house through Dismas correctional procedures, but rather it was

the charge having introduced hazzudous material that constituted his denial of his parole.

Given the fact that the Defendants' were searching for any reason to have M ovant's

parole revoked, due to their personal hatred for Plaintiff and what he stood for, acting

under the color of the law, Defendants intentionally mis-indicted Plaintiftl thus

constituting the Movant's claim for malicious prosecution, and consequently depriving

him of rights secured lmder the Constitution, as he had served ltis debt to society in

prison confinement thus earning him the privilege of parole.

The Defendants want the M ovant to address all the individual elements of

malicious prosecution because they are aware their actions denied the M ovant the ability

to show how alleged conduct deprived him of liberty, by a distortion and com zption of

the processes of law, i.e., falsification of evidence, mischarging him with violations that

where much greater than his actions, and other egregious conduct nnmely the denial of

documents necessary to ensuring due process, resulting ultimately in the denial and

revocation of his parole, and it is for this reason that M ovant should be awarded summary

judgment, and the Defendant's motion to dismiss should be denied.

i. Abuse of Process

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Both the Defendants and the Magistrate make the claim that for Plaintiffto support a

cause of adion fo< abuse of process, tûthe Plaintiff must prove that the m octss was used

for an immediate purpose other thm1 which it was designed''. These processes and

procedures put in place by the Department of Coaections where not put into place to

deny the Plaintiffs rights and privileges, and the M ovant further asserts that these

procedures and processes were not put into place to cover up the Defendants' willful

misconduct and misdoings. The Defendnnts are basically msserting that because their

fabrication of documents, untruthful statements, and padded files achieves the purpose of

ptmishing the defendant, that it is justified. The fact of the matter is that an abuse of

process occurs when there, Ris a cause of action in tort atising from one party making a

malicious and deliberate misuse or perversion of regularly issued court process (civil or

criminal) notjustified by the underlying legal action'' tWolffv. McDormell, 418 U.S.

539, 94 S.Ct. 2963, 41 L.Ed.2d 935 (1974:. This is what hms occun'ed in the case of

the Plaintiff, and the Movant is so stlre of assertion, that he challenges the Defendants to

produce documents that are in Sentry entered and sfnmped w1111 the proper signatures and

dates. The Plaintiffand the Defendants both know that that these forms do not exist as

they would have been documented ms evidence of compliance with due process and

lawful arrest by the Defendants. Again, a11 that has been provided are fabricated

docllments, and Plaintil hms in his previous response sGtement provided exhibits of

instnnces in which em ployees admonishing others to fabricate doczlments. lf the

M ovant's claims to this end are, tçunsubstantiated and self-serving'' as the Defendants

assert in their most recent response brief, then the Defendants should have no trouble

providing evidence of said documents being entered into the Sentry system that are

16


compliance with guidelines from the National Archives and Records Administration and

the CCM , rather th% the documents they have provided that are wrought with the

Defendants' mislnkes and inaccuracies as a result of their hmste to cover up their

misdeeds.

Nealigence and Gross NegliRence

The M agistrate argues that, çtalthough the Plaintiffhas stated why he believes the

Defendants were negligent, he has not sGted how any of the Defendants breached a duty

they owed to him or that any of their breaches were the cause of his damages, nor has he

stated what damages resulted from any breach of their duty. However, the Plaintiff made

sure that a complete nmdown of his medical condition was provided to the defendants,

and it was for that reason that they recommended initial an home confinement, in light of

M s doctors recom mendation against any sort of manual labor. However, Ana Gispert,

has been placed on record as giving him directives go against doctors orders when she

stated that, that she believes that çtdusting qualifies'', thus giving him a directive to

perform manual labor. After days and days of harassment in M s. Gispert's absence, the

M ovant sent an email an email within this Dismms Charities intem al system indicating,

tt... pain and discomfort in my liver''. Yet again, in a letter dated 10/19/2010, the

plaintiffwrote, çkthis letter is to advise you that today, 10/19/2010, 10:50 A.M ., l was

called to the front desk and told that I shotlld vacullm the room for llim, in an attempt to

intimidate me.'' He goes on to state that, &E... as a result of al1 actions against me, for the

last week, by Mr. Thomas and his stafll my liver has swollen and l do experience pain''.

The M ovant went on to request a BP-9 form in the same letter, and did so 5 times within

17


the correspondences within the Exhibit B, in addition to countless verbal request for these

forms. lt is clear that from just the internal correspondences alone, that the Defendants

breached their duty, and their denial of the BP-9 form was only an attempt to prevent any

further documentation of the violations of breach of duty and the obvious damages that

resulted from the harassment, forced manual labor, that exacerbated the M ovant's

medical condition, of which the Defendants aware of the damage being cause, as evident

in M rs. Gispert's prom ise to address the issue w1t.11 Mr. Thomas. Therefore, the

Defendants' argument that plaintiY s motion for s'Immaryjudgment is, Hdevoid of any

proper facts supporting any negligence, claims of forced manual labor, constantly

terrorized and intimidated, and permitted to accept meals f'rom his wife'', is yet another

diversion from the tnzth as proof of the negligent acts on the part of the defendant, and

the direct and proximate dnmages that resulted to the plaintiffare documented in Dismas

Charities own intemal messaging system . ln the Plaintiffs previous response to

Defendants' motion for summaryjudo ent he msserted that, a prison oocial violates a

prisoner's Eighth Amendment rights, and is deemed negligent if he/she is deliberately

indiflkrent to the prisoner's serious medical needs. See Estelle v. Gnmble, 429 U.S. 97,

103-04, 97 S.Ct. 285, 50 L.Ed.2d 251 (1976). Deliberate indifference encompasses only

unnecessary and wanton iniiction of pain repugnant to the conscience of mankind. See

id.at 104-06, 97 S.Ct. 285. ''Subjective recklessness,'' as used in the criminal law, is the

appropriate test for deliberate indiFerence. To inctlr liability tmder j 1983, an individual

must be personally involved in the deprivation of a person's constitutional rights. See

Lozano v. Smith,718 F.2d 756, 768 (5th Cir.1983).

111. Conclusion

18


Therefore, for the reasons stated above, we ask that you review the entire record and

notjust the Plaintiff s initial pleadings, and deny the Defendant's request for

dismissal, and concurrently make a recommendation for Summary Judo ent in favor

of the Plaintiff. lf not then, the Plaintiffshould be given an order to file an nmended

complaint such that we are able to tix our violations with Federal Rules of Civil

Procedtlre rule 8 and 10.

Date: February 20th, 2012

Respectfully Submitted,

o zkzzyzzzozqza/TRM AN BUJDUVEANU, PRO SE LITIGANT

19


CERTIFICATE OF SERVICE

1 hereby certify that on or about FEBRUARY 20, 2012 a tnle and correct copy of the

foregoing document was served upon the following via the United States Postal

Service, First Class M ail:

Dismas Charities, Inc.,

141 N.W . 1 St Avenue

Dania, FL 33004-2835

Ana Gispert

Dism as Charities,lnc.

141 N.W . 1 St. Avenue

Dania, FL 33004-2835

Derek Thom as

Dismas Charities,lnc.


Dania, FL 33004-2835

Lashanda Adams

Dism as Charities,lnc.


Dania ,FL 33004-2835

David S. ChaietEsquire

Attorney for Defendants4000 Hollywood Boulevard

Suite 265-South

Hollyw ood, FL 33021

EXECUTED ON THIS 20 DAY OF FEBRUARY, 2012

z /z zzM pz y/gTRAIAN BUJDUVE NU, PR0 SE5601W . BROW ARD BLVD.,

PLANTATION, FL 33317


Document 96

Technology

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